The Government Strikes Back in Florida

If our depraved former president (FPOTUS) ceased to breathe, the world would be a much better place.

However, in light of the sorry fact that FPOTUS is still breathing, the government did two things today. First, they filed a motion to stay (put on hold) the recent ruling by one of FPOTUS’s “judges” in Florida that interfered with the criminal investigation of FPOTUS’s theft of government documents. But the government limited this request to the 100 or so classified documents found by the FBI when they searched FPOTUS’s lair. The government pointed out that the former president has no right to control access to classified documents under any possible interpretation of the law. They also asked that the “special master” (or outside party the “judge  wants) not be allowed to review the classified documents in order to determine if they somehow belong to FPOTUS:

Specifically, the government seeks a stay to the extent the Order (1) enjoins the further review and use for criminal investigative purposes of records bearing classification markings that were recovered pursuant to a court-authorized search warrant and (2) requires the government to disclose those classified records to a special master for review. The government respectfully requests that the Court rule on this motion promptly. If the Court does not grant a stay by Thursday, September 15, the government intends to seek relief from the Eleventh Circuit (i.e. the higher level in the federal judiciary responsible for Florida, Georgia and Alabama).

The other thing the government did was to file an appeal with the Eleventh Circuit regarding the order for a special master to be appointed at all. The beauty of the appeal is that it allows other judges, some of whom are more competent and less corrupt, to get involved in FPOTUS’s stupid lawsuit; and the government is in no rush to have the appeal ruled on, assuming that a special master can’t be appointed until the Eleventh Circuit rules, which could be months from now.

It helps to have a Department of Justice that is, unlike the one FPOTUS was in charge of,  competent and not corrupt. If you’d like to see some of your tax dollars at work:

The United States’ Motion for a Partial Stay Pending Appeal

Declaration of Alan E. Kohler, Jr., Assistant Director, Counterintelligence Division, Federal Bureau of Investigation

Merrick Garland Has To Get It Right This Time

Merrick Garland’s Department of Justice failed to prosecute the Monster of Mar-a-Lago (aka a cancer on America) for obstruction of justice after he was removed from office, even though the Mueller report showed how guilty he was. The Attorney General is now getting a second chance. 

Neal Katyal, a former Acting Solicitor General of the United States, describes “the future criminal case against D____ T____”:

Congress and the Justice Department now find themselves in a complex dance, set to the tempo of the Jan. 6 hearings. The House select committee has already uncovered evidence suggesting that former President D____ T____ committed serious federal crimes.

Congress cannot bring criminal charges; the Justice Department must do so. And critics of the department are asking why it does not appear to be investigating these allegations. The hearings point to a potential answer: The committee is laying a foundation upon which prosecutors can build in a subsequent investigation.

And a subsequent investigation is virtually inevitable, given the evidence generated by the committee. How could Attorney General Merrick Garland ignore the facts the American people are now learning about?

…Mr. Garland has in the past been cagey about whether there is an investigation into the former president. Yet it’s unthinkable that the Justice Department should not pursue one.

A highly respected federal judge, David Carter, has already said in a published opinion that “the court finds it more likely than not that President T____ corruptly attempted to obstruct the Joint Session of Congress on Jan. 6, 2021.” Those are not easy words for the Justice Department to cast aside. If that doesn’t merit an investigation, it’s hard to think what should.

But we’ve seen no signs of such an investigation. Ordinarily, 17 months after a crime, one would expect to see some signs of an inquiry. Witnesses before grand juries wind up talking to the media, for example, or those witnesses may file court actions to try to block the investigation. None of that appears to have happened.

Then again, this isn’t a normal investigation. Mr. Garland has known from the start that Congress is investigating the whole set of facts involving an attack on its own seat of government, and he may have made the conscious choice to hold off until he sees what Congress has developed.

Public hearings serve a subtle function. They permit the minds of the American people to acculturate to the facts and evidence. By laying out the facts that explain what T____ did, the Jan. 6 hearings can in advance help acclimate the public to why the Justice Department has to take criminal action against the former president. The hearings may afford the department a deeper and public explanation of its reasoning than an indictment out of the blue would offer. Public sentiment of this kind could help insulate the department against a claim that it is politically motivated. These hearings may prove to be a bridge between the Justice Department and the public….

What would criminal charges against D____ T____ look like? Obstruction of an official proceeding is a serious offense that requires the prosecution to show that a defendant obstructed, or attempted to obstruct, an official proceeding and that the defendant did so corruptly. The official proceeding part of this is clear — by law, on Jan. 6, Congress and the vice president must certify the votes. There appears to have been an orchestrated plot by some to try to interfere with that certification — the question is really whether the former president was part of that plot. The committee has presented evidence suggesting that Mr. T____, along with the lawyer John Eastman, and perhaps others such as the White House chief of staff, Mark Meadows, and Jeffrey Clark, a former Justice Department official, attempted to interfere with the election certification on Jan. 6. Before the hearings, it was thought that Mr. T____’s defense against this charge is that he genuinely believed that he had won the election and wasn’t acting “corruptly.”

The testimony in last week’s hearing cast immense doubt on that claim. Mr. T____’s close ally, former Attorney General William Barr, testified that he told the president that arguments claiming he had won the election were “bullshit.” Mr. T____’s daughter Ivanka testified that she believed Mr. Barr. Mr. T____s own election data people told him the same. Mr. T____ might try to claim he still believed the nonsense, but such an argument would be difficult to make given the array of people who told him in no uncertain terms that he had lost. Mr. T____ persisted, despite the warnings, to try to interfere with the lawful transfer of power. This looks very much like an attempt to obstruct an official proceeding.

The Justice Department could also bring the charge of “conspiracy to defraud the United States.” A charge of conspiracy requires proof that two or more people agreed to defraud the country. A key feature of conspiracy charges is that the plot need not succeed — charges are tethered to the agreement to do something illegal, not to actually pull it off. Prosecutors need not wait until the bomb goes off (or in this case, until the election results are wrongfully thrown out) before bringing charges.

Here, Mr. T____ faces yet another problem: Even if we were to ignore Mr. Barr and others, and accept that Mr. T____ believed he had won the election, courts have ruled that a genuine but mistaken belief is not enough to defeat a conspiracy charge. Oliver North, for example, famously claimed he did not conspire to violate a particular foreign affairs law because he believed that law to be unconstitutional, but the courts threw that claim out. The law does not work that way, and it cannot work that way particularly when people who control the entire machinery of government advance such preposterous claims.

Finally, the Justice Department could bring seditious conspiracy charges. Such charges have already been used by the Justice Department against members of the Oath Keepers and the Proud Boys. This is one of the most serious charges in the federal criminal code, but it’s also the one that is the hardest for prosecutors to bring against Mr. T____.

The charge requires prosecutors to prove that two or more people agreed to use force to delay the execution of a law or to overthrow the government. Here, Mr. T____’s defense would be that while he may have wanted to delay certification of the election, he did not ever formally agree with someone else to use “force.” The communications uncovered by the committee, showing an agreement with Mr. Eastman and others, are not likely to reveal anything about force. As such, while the committee may call some of the invaders of the Capitol seditious conspirators, it is, under the present publicly known set of facts, unlikely to yield that criminal charge against the former president.

Mr. Garland has these charges to consider, and potentially others such as wire fraud, arising out of evidence the committee presented in the second hearing about Mr. Trump misleading his donors. Based on the evidence presented so far, it seems as if the most likely charges are obstruction of an official proceeding and conspiracy, and not seditious conspiracy.

The committee has done a masterful job of starting to present its case to the American people, who are, after all, the first audience for their argument. And it has done so at a time when inflation, war in Ukraine, reproductive rights, gun violence and climate change equally demand our attention.

But the only way we as Americans have control over the decisions of elected bodies and the president in each of these areas is through our votes. If an incumbent president can use the machinery of government to orchestrate a way to throw our votes out, the foundations of our democracy will have crumbled. If you care about inflation, or foreign policy or anything else, you have to care about this. And so too should the Justice Department….

Charge Him Now: Obstruction of Justice

Remember this? It was news in May 2019:

President D___ T___ would have been indicted for obstruction of justice in special counsel Robert Mueller’s investigation if he did not hold the nation’s highest office, nearly 700 former federal prosecutors argued in an open letter published on Medium on Monday.

The ex-prosecutors — who have served under both Republican and Democratic administrations dating back to President Dwight D. Eisenhower — said Attorney General William Barr’s decision not to charge T___ with obstruction “runs counter to logic and our experience.”

The letter added, “Each of us believes that the conduct of President T___ described in Special Counsel Robert Mueller’s report would, in the case of any other person not covered by the Office of Legal Counsel policy against indicting a sitting President, result in multiple felony charges for obstruction of justice.”

“We believe strongly that, but for the OLC memo, the overwhelming weight of professional judgment would come down in favor of prosecution for the conduct outlined in the Mueller Report,” the letter continued.

The Mueller report cited 10 episodes indicating that T____ could be prosecuted after he left office. He left office more than six months ago, but there is no sign so far that the Department of Justice is pursuing the matter.

Before leaving office, the former president also tried to overturn the results of the election. I’m not sure there is anything in federal law that explicitly makes that behavior illegal. The laws against treason and sedition are narrowly written and may not apply to a president doing everything he can to illegally remain in office. Congress probably never imagined that kind of behavior.

Nevertheless, this latest news is remarkable:

Former President D____ T____ . . . explicitly pressured {the acting attorney general] to declare the 2020 election “corrupt” in a December phone call, according to documents published Friday by the House Oversight and Reform Committee. [They are] the most recent evidence of T____’s extraordinary campaign to overturn the election’s results.

The House committee—which is investigating the T____ administration’s potentially unlawful efforts to influence the outcome of the election—made public notes taken by former acting Attorney General Jeffrey Rosen’s deputy, Richard Donoghue, during a Dec. 27 phone call between T____ and top officials from the Department of Justice.

In the notes summarizing the call, Donoghue recalled T____ asking Rosen and other top officials to “just say that the election was corrupt + leave the rest to me” and congressional allies [Forbes].

But, according to The Guardian:

D____ T____ insisted on Saturday that when he told senior justice department officials to “Just say that the election was corrupt [and] leave the rest to me”, he was not attempting to subvert US democracy, but to “uphold the integrity and honesty of elections and the sanctity of our vote”. . . .

One Washington editor, Benjy Sarlin of NBC News, wrote on Twitter: “We can’t take a continuous historic scandal for granted just because he says it out loud all the time. These are Watergate-level allegations.”

On Friday, Carolyn Maloney, chair of the House oversight committee, said: “These handwritten notes show that President T____ directly instructed our nation’s top law enforcement agency to take steps to overturn a free and fair election.”

If that isn’t treason or sedition, strictly speaking, it sure sounds like “interference with the orderly administration of law and justice”, i.e. obstruction.

The Department of Justice has work to do in the matter of former president D___ J. T____.

Or doesn’t the rule of law apply to him?

Where’s the Justice?

It’s better to be frustrated and impatient than angry and horrified, so getting a new president and administration that isn’t made up of idiots, creeps and criminals is a blessing.

Nevertheless, I never expected to be thinking so much about a few Democratic senators, especially that two-headed, pro-filibuster creature we might as well call “Manchinema”. There is so much that could be accomplished with Joe Biden as president, a small majority in the House and 50 votes in the Senate.

Unfortunately, another source of frustration and impatience at the moment is Attorney General Merrick Garland and the talented lawyers who work for him.

As Jennifer Rubin of The Washington Post points out:

[Garland] has . . .  never indicated as to whether, now that former president X is out of office, the department would follow up on alleged illegal conduct examined by special counsel Robert S. Mueller III (e.g., obstruction of justice, perjury, witness tampering). 

Here’s more on that story from Washington Monthly’s Jennifer Taub:

Special Counsel Robert Mueller’s Report on Russian Interference in the 2016 Election was released to the public on April 18, 2019 (in redacted form). Volume II provided a clear, detailed roadmap for a post-term prosecution of X for a variety of obstruction-of-justice offenses. The Report noted that while the Justice Department policy forbids prosecuting a president while in office, “Recognizing an immunity from prosecution for a sitting President would not preclude such prosecution once the President’s term is over or he is otherwise removed from office by resignation or impeachment.”

This should have been a bombshell. But, thanks to [former Attorney General] Barr’s words and actions almost a month earlier, selling the report as an exoneration of X, [it] fizzled. (In a particularly egregious headline, the New York Times said that Mueller exonerated X, not even attributing it to Barr.) By the time we got to read the report, Barr’s characterizations had been disproved, but by then the press and public yawned.

Let’s recall what Barr did. On March 22, 2019, the Justice Department received a confidential copy of the 448-page Mueller Report. A former AG and political player for decades, Barr surely saw how damaging it was, so he did not share it. Instead, two days later, on March 24, Barr delivered a four-page letter to Congressional leaders (which was then released to the public). The letter purported to “summarize” the Mueller Report’s “principal conclusions.” But Barr did not provide a truthful summary; he concocted a cynical spin.

Regarding obstruction of justice, Barr said Mueller had concluded that “while this report does not conclude that the president committed a crime, it also does not exonerate him.”

This was a shocking revelation. . . .  In a Politico roundup published that day, I contended that “Barr’s conclusions are not credible.”  It took reading between the lines to appreciate his hustle. But, instead of respecting Mueller’s refusal to clear X, Barr told Congress that this meant it was now his job to come to a legal conclusion. But, it was not. Doing so undermined the entire purpose of the Special Counsel statute, which was NOT to leave such a decision in the Attorney General’s hands. Barr claimed that “the evidence developed during the Special Counsel’s investigation is not sufficient to establish that the President committed an obstruction-of-justice offense.”

Thanks to Barr, many wrongly believe Mueller exonerated X. Around 60 percent of Americans either thought the president had been cleared or were unsure. Only 40 percent correctly understood that Mueller did not exonerate X.

Disappointingly, Merrick Garland’s Justice Department [has chosen] to continue the cover-up. Here’s a little background to explain how this happened and the alternative path Garland could have taken.

Back in April of 2019, Barr said that he relied on advice from the Justice Department’s Office of Legal Counsel before drafting his March 24 communication to Congress about the Mueller Report. In response, the non-partisan, public interest organization Citizens for Responsibility and Ethics in Washington (CREW) sued the Department under the Freedom of Information Act (FOIA), requesting all related documents.

[The Justice Department] told the judge that one of the documents that CREW wanted was protected from public disclosure under the FOIA law under the “deliberative process privilege.” They argued this particular March 24, 2019 memo from the Office of Legal Counsel to Barr was “pre-decisional” as they claimed it was given to Barr before he made his final decision on whether Trump obstructed justice. And they claimed that it was “deliberative” because it was provided to aid him in his decision-making process.”

On May 4 of this year, Judge Amy Berman Jackson called bullshit on those claims, to put it mildly. In a stinging opinion, she ruled in favor of CREW and ordered Garland’s Justice Department to hand over the memo. . . . Berman Jackson wrote that “there was no decision actually being made as to whether the then-President should be prosecuted.” She saw the DOJ as “girding for a preemptive strike on the Mueller report.” The memo was not shielded as pre-decisional legal advice.

As I wrote in the Washington Monthly at the time, this was Garland’s inflection point. It would have been so very easy to decide not to appeal and to allow the memo to be released. Instead, Garland’s DOJ lawyers doubled down on the deception. On May 25, Garland had his team ask Judge Jackson to stay her order (put it on hold) so they could keep the memo hidden while they appealed her decision. . . . 

Garland’s decision shocked and disappointed many experts. Former Solicitor General Neal Katyal penned an opinion piece arguing that “the American people have a right to see the memo. Then they can decide whether Mr. Barr used his power as the nation’s chief law enforcement officer as a shield to protect the president” . . . 

Garland, who served on the D.C. Circuit Court of Appeals from 1997 to 2021, might have additionally justified releasing the memo to the public on principle. Anyone with eyes could see that both Barr and Justice Department lawyers (still employed by Garland) misled a federal judge. A strong manager would make it clear that dishonesty would no longer be tolerated under his leadership. As a former DOJ prosecutor—after the Oklahoma City bombing Garland left private practice to prosecute domestic terrorism—Garland should have been incensed. As Bob Dole used to say, “Where’s the outrage?” . . . 

Unquote.

Whether that memo is ever made public is much less important than whether our former president (aka the unindicted co-conspirator) is ever prosecuted. Now that he’s no longer shielded by the presidency, he needs to face the music for his obstruction of justice, perjury and witness tampering. Prosecuting him would outrage his crazy supporters. That’s too damn bad. Attorney General Garland needs to demonstrate that powerful people, even presidents, can’t trample on the law and avoid the consequences.

Things Are Not Getting Better

The news has not been good, leading various journalists to summarize the past few days the way Jamelle Bouie did for Slate:

After months of sustained public criticism from Trump, Andrew McCabe stepped down as deputy director of the FBI. The rationale behind McCabe’s decision is still not entirely known, but there’s little doubt it involves the Russia investigation. In addition to being a verbal target of Trump’s, McCabe had become a bête noire of conservative media, the subject of baroque conspiracies about a “deep state” that is allegedly conspiring against the president….

Republicans on the House Intelligence Committee voted to release a … memo [that] accuses the FBI of abusing its surveillance powers, using partisan opposition research in order to attack Donald Trump’s campaign and undermine his presidency, and singling out officials like McCabe, Deputy Attorney General Rod Rosenstein, and former FBI Director James Comey, all targets of Trump and his allies in the GOP and conservative media… Democrats on the committee have called the document a “misleading set of talking points”, and federal law enforcement officials had warned that releasing the memo would be “extraordinarily reckless”….

In the wake of this vote, Republicans on the Intelligence Committee also opened an inquiry into the FBI and the Justice Department… On Tuesday, House Speaker Paul Ryan announced his support for both moves, calling for a “cleanse” of the FBI….

What began as Trump venting on Twitter has now become official administration policy, carried out with the blessing of White House aides who were at one time seen as bulwarks against such behavior. Bloomberg reported on a phone call between White House chief of staff John Kelly and senior officials in the Justice Department, where the former conveyed the president’s “displeasure” and reminded them of his expectations, albeit adding that the White House doesn’t expect them “to do anything illegal or unethical”.

To all of this, add the fact that—during this same period of time—President Trump declined to sanction Russia for its interference in the 2016 presidential election [after Congress voted almost unanimously for new sanctions to be imposed].

Senator Claire McCaskill, a Missouri Democrat, said this about the president’s decision:

Congress voted 517-5 to impose sanctions on Russia. The President decides to ignore that law. Folks, that is a constitutional crisis. There should be outrage in every corner of this country.

There should be, but there hasn’t been. Most of us are suffering from outrage overload.

Earlier in the week, Mr. Bouie wrote about “ICE Unbound”:

[The president has unleashed] the Immigration and Customs Enforcement agency, giving it broad authority to act at its own discretion. The result? An empowered and authoritarian agency that operates with impunity, whose chief attribute is unapologetic cruelty.

…. The most striking aspect of ICE under this administration has been its refusal to distinguish between law-abiding immigrants, whose undocumented status obscures their integration into American life, and those with active criminal records—the “bad hombres” of the president’s rhetoric.

Erasing that distinction is how we get the arrest and detention of Lukasz Niec, a Polish immigrant and green card holder who was brought to the United States as a young child. Last week, ICE agents arrested Niec …, citing two misdemeanor convictions for offenses committed when he was a teenager… A practicing physician, Niec now sits in a county jail, awaiting possible deportation….

Bouie didn’t mention Amer Othman Adi, a 57-year-old Palestinian who had been in the U.S. since he was 19. A married man with four daughters, he helped revitalize the city of Youngstown by opening several businesses. He was deported to Jordan on Monday night.

It all makes these Twitter thoughts from author G. Willow Wilson worth thinking about:

It may be time to start thinking about how we can effectively push back against authoritarianism once the last of the checks and balances have fallen.

It’s a mistake to think a dictatorship feels intrinsically different on a day-to-day basis than a democracy does. I’ve lived in one dictatorship and visited several others–there are still movies and work and school and shopping and memes and holidays.

The difference is the steady disappearance of dissent from the public sphere. Anti-regime bloggers disappear. Dissident political parties are declared “illegal”. Certain books vanish from the libraries.

The press picks a side. The military picks a side. The judiciary picks a side. This part should already feel familiar.

The genius of a true, functioning dictatorship is the way it carefully titrates justice. Once in awhile it will allow a sound judicial decision or critical op-ed to bubble up. Rational discourse is never entirely absent. There is plausible deniability.

People still have rights, in theory. The right to vote, to serve on a jury, etc. The difference is that they begin to fear exercising those rights. Voting in an election will get your name put on “a list”.

So if you’re waiting for the grand moment when the scales tip and we are no longer a functioning democracy, you needn’t bother. It’ll be much more subtle than that. It’ll be more of the president ignoring laws passed by congress. It’ll be more demonizing of the press.

Until one day we wake up and discover the regime has decided to postpone the 2020 elections until its lawyers are finished investigating something or other. Or until it can ‘ensure’ that the voting process is ‘fair’.

A sizable proportion of the citizenry will support the postponement. Yes, absolutely, we must postpone elections. The opposition is corrupt! Our leader is just trying to protect us! A dictator is never without supporters.

And hey, if we pull ourselves back from the brink and the midterms go ahead and the 2020 election is free and transparent and on time, you are cordially invited to point at me and laugh. Honestly. No one will be happier to be wrong than me.